A Modest Revelation About Trump v. Anderson
Today’s much-discussed New York Times article by Jodi Kantor and Adam Liptak includes many details about the inner workings of the Supreme Court’s deliberations on several key cases decided this year. For the most part, I think the revelations aren’t enormously surprising. Chief Justice John Roberts maneuvered for consensus on some key cases. But, in two important ones involving Trump—Trump v. Anderson (the Section 3 disqualification case) and Trump v. United States (the presidential immunity case) – he ultimately sided with a bloc of four conservative justices when full consensus proved elusive. That is fairly evident from the opinions in the cases themselves.
But the reporting does shed a little light on one issue regarding Trump v. Anderson. In my forthcoming article criticizing that ruling, I argue that the majority ruled that people can only be disqualified from holding office under Section 3 of Fourteenth Amendment pursuant to special congressional legislation under Section 5 of the same Amendment (which gives Congress the power to enact “appropriate” enforcement legislation). In legal parlance, they held that Section 3 is not “self-executing.” That is also what the concurring opinions by Justice Amy Coney Barrett and the three liberal justices assume (both opinions differ with the majority on that issue). But some other commentators—most notably Will Baude and Michael Paulsen—disagree, arguing that majority only concluded that states cannot disqualify a candidate like Trump.
The New York Times article suggested the justices themselves interpret the ruling much as I do:
While all nine justices agreed that Mr. Trump should remain on state ballots, four of the conservatives were pushing to go beyond that and rule that the Constitution’s prohibition would require congressional action to take effect. Such a decision would provide greater protection for Mr. Trump: To prevent him from taking office if he won re-election, Congress would have to vote to enforce the insurrectionist ban.
That left the chief justice in control of the outcome. He lingered over the choice, those familiar with the process said. Ultimatel
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